Aurere C., Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionFeb 25, 20160120143143 (E.E.O.C. Feb. 25, 2016) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aurere C., Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service, Agency. Appeal No. 0120143143 Hearing No. 460-2013-00036X Agency No. 4G-770-0163-12 DECISION Complainant filed an appeal from the Agency’s August 14, 2014 final order concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. For the following reasons, the Commission AFFIRMS the Agency’s final order. BACKGROUND Complainant worked as a City Letter Carrier at the Oak Forest Station in Houston, Texas. On July 21, 2012, she filed an EEO complaint in which she alleged that the Delivery Manager discriminated against her on the bases of race (African-American), national origin (American), sex (female), disability (residual effects of an on-the-job injury), and age (50) by removing her from the route examiner team on March 19, 2012. At the conclusion of the ensuing investigation, the Agency notified Complainant of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). Although Complainant timely requested a hearing, the AJ assigned to the case granted the Agency’s April 24, 2013, 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 0120143143 2 motion for summary judgment over her objection and issued a decision on July 30, 2014, without holding a hearing. The Agency subsequently issued a final order adopting the AJ’s finding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. Complainant had sustained on-the-job injuries to her right ankle and knee in October 2005 and had been under medical restrictions ever since. Those restrictions included no more than two hours of walking per day. Nevertheless, she had been able to work within those restrictions and had never asked for a reasonable accommodation. Investigative Report (IR) 70, 72, 80-81. The District Manager averred that being on the route examiner team required walking up to ten hours per day. IR 81. The Delivery Manager averred that she had Complainant removed from the team as soon as she became aware of the two-hour restriction on walking in order to comply with the orders of Complainant’s physician. IR 97. ANALYSIS AND FINDINGS The Commission cannot second-guess an Agency’s personnel decisions involving work assignments unless there is evidence of a discriminatory motivation on the part of the officials responsible for making those decisions. See Texas Department of Community. Affairs v. Burdine, 450 U.S. 248, 259 (1981). Therefore, in order to warrant a hearing on her disparate treatment claim, Complainant would have to present enough evidence to raise a genuine issue of material fact as to whether the Delivery Manager were motivated by unlawful considerations of her race, sex, national origin, age, or disability when she decided to take her off the route examiner team. See 29 C.F.R. § 1614.109(g); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143 (2000). Complainant can do so in circumstantial-evidence cases like this by presenting documents or sworn testimony showing that the reason articulated by the Delivery Manager for taking her off the route examiner team is pretextual, i.e., not the real reason but rather a cover for discrimination on at least one of the bases listed above. St. Mary’s Honor Society v. Hicks, 509 U.S. 502, 515 (1993) citing Burdine, 450 U.S. at 253. Evidence of pretext can include discriminatory statements or past personal treatment attributable to the Delivery Manager, comparative or statistical data revealing differences in treatment across racial, gender, national origin, age or disability-related lines, unequal application of Agency policy, deviations from standard procedures without explanation or justification, or inadequately explained inconsistencies in the evidentiary record. Mellissa F. v. United States Postal Service, EEOC Appeal No. 0120141697 (November 12, 2015). When asked by the investigator why she believed that the Delivery Manager had discriminated against her, Complainant responded that no one else was removed from the route examiner team, that younger people were not affected, and that the Delivery Manager had told her that it was because of her disability. IR 62-63. Complainant also averred that the Delivery Manager had informed her that she had gotten a call from the District Manager questioning her ability to conduct route examinations, and that several other employees who were under medical restrictions were still on detail assignments. IR 64. The District Manager denied that he had 0120143143 3 ever made such a statement. IR 81. Moreover, the employees who Complainant identified as comparatives were either not under medical restrictions or were not engaged in work that exceeded their restrictions. IR 82, 90, 104-06. Complainant herself admitted that she did not know of any employees who were similarly situated to her. IR 63. Thus, on the crucial issue of the existence of a discriminatory motive on the part of the Delivery Manager, Complainant did not provide evidence of any of the indicators of pretext described above. She has not submitted any sworn statements from other witnesses or documents that contradict the explanation provided by the Delivery Manager, or which call the Delivery Manager’s veracity into question. We therefore find, as did the AJ, that no genuine issue of material fact exists with respect to the Delivery Manager’s motivation in connection with her March 19, 2012 decision to take Complainant off the route examiner team. CONCLUSION Based on a thorough review of the record and the contentions on appeal, we AFFIRM the Agency’s final order. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The 0120143143 4 Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official Agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. “Agency†or “department†means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations February 25, 2016 Date Copy with citationCopy as parenthetical citation